An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1252


Filed: 5 August 2003



v .                         Henderson County
                            No. 01 CVD 641


    Appeal by defendant from order entered 13 March 2002 by Judge Mark E. Powell in Henderson County District Court. Heard in the Court of Appeals 13 May 2003.

    Bazzle & Carr, P.A., by Eugene M. Carr, III, for the plaintiff appellee.

    Donald H. Barton for the defendant appellant.

    ELMORE, Judge.

    This appeal comes to us from a child custody order entered in the district court dividing the custody of a minor child between the defendant father and the plaintiff mother.
    We first note that the order of Judge Mark E. Powell granting primary custody to the plaintiff in the above matter was entered pursuant to N.C.R. Civ. P. 58 on 13 March 2002. The defendant filed and served his Notice of Appeal from said order on 16 April 2002, more than thirty days after entry of the order being appealed. Rule 3 of our Rules of Appellate Procedure mandates that Notice of Appeal must be filed and served within thirty days of entry of the order being appealed. Although defendant failed totimely file his appeal, we will treat the appeal as a petition for writ of certiorari and hear the appeal under Rule 21(a)(1) of the Rules of Appellate Procedure.
    Defendant argues on appeal that the trial court erred in modifying custody of the minor child on the grounds that the findings of fact are not based upon competent evidence that a substantial change of circumstance affecting the welfare of the child has occurred. “Once the custody of a minor child is determined by a court, that order cannot be altered until it is determined (1) that there has been a substantial change in circumstances affecting the welfare of the child and (2) a change in custody is in the best interest of the child.” Evans v. Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576, 578-79 (2000) (citations omitted); N.C. Gen. Stat. § 50-13.7(a) (2001). A party seeking modification of a child custody order bears the burden of proving a substantial change of circumstances has occurred which affects the welfare of the child. See Crosby v. Crosby, 272 N.C. 235, 237, 158 S.E.2d 77, 79 (1967). Only after evidence of a substantial change of circumstances is presented does the court consider evidence probative of the “best interest of the child” issue. See Garrett v. Garrett, 121 N.C. App. 192, 464 S.E.2d 716 (1995), overruled on other grounds, 348 N.C. 616, 501 S.E.2d 898(1998). Whether there has been a substantial change of circumstances is a legal conclusion, and must be supported by adequate findings of fact. Id. at 196, 464 S.E.2d at 719. A trial court's findings of fact “are conclusive on appeal if there is evidence to supportthem.” Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521 (1987) (citation omitted).
    It is a long-standing rule that the trial court is vested with broad discretion in cases involving child custody. In re Peal, 305 N.C. 640, 645, 290 S.E.2d 664, 667 (1982). Because the trial court has the opportunity to see the parties and can observe witnesses, the trial court's decisions should be upheld on appeal absent a showing of abuse of discretion. Pulliam v. Smith, 348 N.C. 616, 624-25, 501 S.E.2d 898, 902 (1998).
    In this case, the trial court found a substantial change in circumstances based upon evidence that the cooperation which existed between the parties under the previous custody agreements, and upon which the arrangements depended, had become non-existent. The evidence supporting the findings was that both the plaintiff and the defendant are good parents, but that the defendant would often disregard the plaintiff's wishes as to the amount of time he was allowed to spend with the child. Communication between the parties had deteriorated to the point that they would no longer negotiate but simply dictate the schedule to one another. There were instances when both would show up at school to pick up the child, and tension between the parties about the schedule was evident to the child and “bother[ed] her greatly.” The trial court found that the child was sometimes less comfortable with her father than her mother, and the findings of fact relate situations that demonstrate the child's discomfort and an instance of improper discipline by the defendant. Defendant also caused the child tomiss approximately thirty dance lessons because of activities he deemed more important. When the child was in kindergarten, defendant took her out of school for a trip to the western United States. Plaintiff objected to the defendant taking her out of school and not saving the trip for a period of school recess. The trial court found that these differing priorities in raising the child cannot be mutually accomplished. With the agreement of the parties, the trial court spoke with the child outside of the courtroom and in the presence of the courtroom clerk. Her comments were not revealed to the parties, but were given some weight.
    Based on the findings, the trial court granted primary custody to the plaintiff and secondary custody to the defendant. Under the previous arrangement, defendant had custody of the child for 15 days per month. In this order, the trial court gave defendant custody from Thursday to Monday every other weekend, and two weeks during the three-week breaks from school, except for the December break which is split on Christmas day with each parent alternating years of custody before and after Christmas. Defendant was also awarded custody for three weeks of the five-week break from school.
    We hold that the trial court did not abuse its discretion in its conclusions of law, and that the findings of fact are supported by the evidence.
    Judges WYNN and MCCULLOUGH concur.
    Report per Rule 30(e).

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